October 2015 SDR – Voice for the Defense Vol. 44, No. 8

Voice for the Defense Volume 44, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

A court of appeals has jurisdiction to review the Board of Immigration Appeals rejection of a non-citizen’s motion to reopen, even when the Board rejects the motion as untimely or it rejects a motion requesting equitable tolling of the time limit. Reyes Mata v. Lynch, 135 S. Ct. 2150 (2015).

        D, a citizen of Mexico, was convicted of assault and deported in 2010. His appeal to the Board of Immigration Appeals (BIA) was dismissed after his attorney failed to file an appellate brief. D moved to reopen his case based on ineffective assistance of counsel, but the BIA denied D’s motion as untimely because it was filed after the 90 days allowed. D appealed the BIA’s denial of his motion to the Fifth Circuit and argued that the BIA should not have enforced the filing period limitation because his attorney’s failure to file a brief deprived him of due process. The appellate court held that such a motion was subject to the complete discretion of the BIA, and thus the appellate court lacked the jurisdiction to review the decision. The Supreme Court granted certiorari on this issue: Did the U.S. Court of Appeals for the Fifth Circuit err in holding that it did not have the jurisdiction to review a BIA decision not to suspend the 90-day filing limitation?

        Yes, precedent established that circuit courts of appeals have jurisdiction to review an alien’s appeal of a BIA decision to deny a motion to reopen proceedings. Although the U.S. Congress has limited the appellate courts’ authority over BIA decisions in other ways, this authority has remained in place. Additionally, while the appellate courts may lack jurisdiction to decide the merits of whether the case should be reopened, the lack of jurisdiction over that issue does not affect the appellate court’s jurisdiction over the BIA’s decision to deny the motion. The Court reversed the Fifth Circuit and remanded.

To convict a defendant of distribution of a controlled substance analogue, the Government must prove that the defendant knew that the substance constituted a controlled substance analogue. McFadden v. United States, 135 S. Ct. 2298 (2015).

        D was charged with distributing controlled substance analogues in violation of the federal Con­trolled Substance Analogue Enforcement Act of 1986, which identifies a category of substances substantially similar to those listed on the federal controlled substances schedules, 21 U.S.C. § 802(32)(A), and instructs courts to treat those analogues as schedule I controlled substances if they are intended for human consumption, § 813. Arguing that he did not know the “bath salts” he was dis­tributing were regulated as controlled substance analogues, D sought an instruction that would have prevented the jury from finding him guilty unless it found that he knew the substances he distributed had chemical structures and effects on the central nervous system substantially similar to those of controlled substances. Instead, the district court instructed the jury that it need only find that D knowingly and intentionally distributed a substance with substantially similar effects on the central nervous system as a controlled substance and that he intended that substance to be consumed by humans. D was convicted. The Fourth Circuit affirmed, holding that the Analogue Act’s intent element required only proof that D intended the substance to be consumed by humans. The Supreme Court vacated the Fourth Circuit’s judgment and remanded for that court to determine whether the error was harmless.

        As held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits, § 841(a)(1) of the Controlled Substances Act required the government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act. In other words, 21 U.S.C. § 841(a)(1) required the United States to establish that a defendant knew he was dealing with a controlled substance, and, when the substance was an analogue, that knowledge requirement was met if the defendant knew the substance was controlled under the Controlled Substances Act or Analogue Act, even if he did not know its identity. The knowledge requirement was also met if the defendant knew the specific features of the substance that made it a controlled substance analogue. The appellate court did not adhere to § 813’s command to treat a controlled substance analogue as a controlled substance in schedule I; thus, it did not apply the mental-state requirement in § 841(a)(1). Furthermore, the district court’s jury instructions did not fully convey the mental state required by the Analogue Act.

Fifth Circuit

District court erred in dismissing 18 U.S.C. § 48 charges against Ds on the ground that the statute was unconstitutional. United States v. Richards, 755 F.3d 269 (5th Cir. 2014).

        Unlike the 1999 version of § 48, which was held unconstitutional under the First Amendment in United States v. Stevens, 559 U.S. 460 (2010), the 2010 reenactment of the statute covered only depictions that were obscene under the test of Miller v. California, 413 U.S. 15 (1973). Thus, the new version of the statute covered only speech that was unprotected by the First Amendment. The Fifth Circuit also rejected Ds’ argument that § 48 violated the First Amendment under R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); although § 48 regulated a content-based subclass of proscribable speech, it did so based on the secondary effects of that speech (namely, the torture and killing of animals). Moreover, § 48 served that interest in a reasonably tailored way and was a permissible regulation of a subset of proscribable speech.

District court did not abuse its discretion in dismissing, under the Speedy Trial Act, the first indictment against D without prejudice, and thus it properly denied D’s mo­tion to dismiss the second indictment. United States v. Blevins, 755 F.3d 312 (5th Cir. 2014).

        In this prosecution for drug and gun charges, the seriousness of the charges, the absence of prejudice to D, and most of the other relevant factors weighed in favor of dismissal without prejudice.

        (2) The indictment adequately charged and gave D notice that she was being charged with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The fact that the indictment included surplus language pertaining to a “use or carrying” violation of § 924(c) was, at most, a technical defect that did not obscure which of­fense was being charged. Any ambiguity in the charge’s language was cured by the caption of the charge.

        (3) Where a penalty enhancement information under 21 U.S.C. § 851(a) was filed in connection with a first indictment that was dismissed without prejudice for a Speedy Trial Act violation, that information was no longer valid for the new prosecution resulting from filing a second indictment. The propriety of sentence enhancement thus turned on whether the penalty enhancement information filed during the second prosecution was valid; because that required the resolution of factual questions about whether D received proper notice of the second information, the Fifth Circuit vacated the enhanced sentence and remanded for a determination of whether the second information was properly filed and served on D.

        (4) District court did not err in denying D’s motions to suppress evidence; she failed to show any alleged misrepresentations in the affidavit for her arrest warrant were so significant that there was no probable cause for her arrest. Furthermore, the entry into, and search of, D’s home at the time of the execution of the arrest warrant did not violate the Fourth Amendment; the arrest warrant allowed the officers to enter the home to arrest D once they had a reasonable belief that she was there, which they did because she answered the door. Once inside, the police could reasonably perform a protective sweep. Finally, D’s consent to search was not involuntary; a suspect need not be given Miranda warnings before consenting to a search.

        (5) District court did not err in denying D’s motion to suppress statements said after she was given Miranda warnings. Unlike Missouri v. Seibert, 542 U.S. 600 (2004), there was no evidence that the Mirandized statements were the product of a deliberate earlier questioning “outside Miranda.

District court did not err in declining to suppress D’s first two confessions based on lack of prompt presentment to a magistrate; the delay was reasonable for both of those confessions. United States v. Boche-Perez, 755 F.3d 327 (5th Cir. 2014).

        Even though these confessions were made outside the six-hour “safe harbor” period set in 18 U.S.C. § 3501, such con­fessions still do not warrant suppression if the delay was reasonable under the pre-§ 3501 McNabb/Mallory line of cases. The Fifth Circuit declined to address the third confession because, even if it should have been suppressed for lack of prompt presentment, the error was harmless; furthermore, the confessions were all voluntary. Finally, the failure to give fresh Miranda warnings before the last confession did not taint that confession, because D had been given Miranda warnings before each of his two earlier confessions; additional warnings were not required.

District court did not err in denying D’s motion to suppress his interrogation video because the totality of the circumstances supported the conclusion that D was properly apprised of his Miranda rights and that his confession was knowing and voluntary. United States v. Anderson, 755 F.3d 782 (5th Cir. 2014).

        (2) In this prosecution of D for aiding and abetting bank robbery (in violation of 18 U.S.C. §§ 2113(a) and 2), where a po­tential defense witness (an uncharged passenger in D’s car the day of the robbery) initially agreed to testify for D but then changed his mind and exercised his Fifth Amendment right not to testify, there was no viable claim of governmental interference with the defense witness because an on-the-record colloquy between the witness and his attorney showed that the witness’ decision not to testify was a result of a deliberative pro­cess free and clear of government intimidation.

        (3) District court did not err in refusing to admit evidence that pleading co-defendant had robbed another bank about two weeks before the robbery that was the subject of the trial here; district court did not err in refusing to admit the interrogation video of an uncharged passenger in D’s car because D did not establish why the interrogation video fell under a hearsay exception; finally, district court did not err in excluding evidence of pleading co-defendant’s mental condition because D did not provide any reason why this was error.

        (4) Prosecutor’s argument that an uncharged participant in the bank robbery was facing life in prison in state court was improper because it referenced facts not in evidence at trial; however, that improper comment did not warrant reversal because (i) the jury was instructed to disregard the comment and was several times instructed that the attorneys’ arguments were not evidence; (ii) the comment had nothing to do with D; and (iii) the other evidence of D’s guilt was more than sufficient to convict D.

        (5) District court did not err in sentencing D as a “career offender” under USSG § 4B1.1; although Texas burglary of a habitation is not necessarily the generic “crime of violence” of “burglary of a dwelling” under USSG § 4B1.2 (because Tex. Penal Code § 30.02(a)(3) is not generic “burglary”), here the judicial confession from D’s prior Texas case makes clear that D pleaded guilty to an offense that meets the elements of generic burglary.

D was not entitled to a certificate of appealability on his claim of prosecutorial vindictiveness because there was no evidence of actual vindictiveness. Jordan v. Epps, 756 F.3d 395 (5th Cir. 2014).

        Where (1) Mississippi capital defendant entered into an agreement for life without parole in exchange for his promise not to challenge his sentence, (2) but then he successfully challenged his sentence on the ground that life with parole was not a permissible statutory option at the time, and (3) on remand, the prosecutor refused to offer the same life-without-parole agreement, and successfully sought a death sentence at trial, D was not entitled to a certificate of appealability (COA) on his claim of prosecutorial vindictiveness. The fact that the prosecutor refused to enter into a new sentence agreement due to D’s previous violation of his agreement not to challenge his sentence did not establish actual vindictiveness. Nor did D make out a claim of presumptive vindictiveness; under Fifth Circuit law, no presumption of vindictiveness arises where there is no change in the charges filed or punishment sought. Here, D was always subject to the death penalty that was ultimately imposed on him.

One D’s challenge to venue was waived by his failure to specifically make a venue argument in his motion for judgment of acquittal; even if it were not waived, venue was proper in the Eastern District of Texas because venue is proper in conspiracy offense in any district where the agreement was formed or an overt act occurred. United States v. Rodriguez-Lopez, 756 F.3d 422 (5th Cir. 2014).

        (2) In this prosecution for conspiracy to distribute marijuana, it was improper for prosecutor to refer, in closing argument, to second D’s counsel as “lend[ing] [his] credibility to representing drug traffickers and firearms dealers[.]” “Disparaging defense counsel’s motives for representencing a criminal defendant is a foul blow.” However, the district court did not abuse its discretion in denying second D’s motion for a new trial on the basis of this remark, given the district court’s prompt rebuke of the remark, the curative instructions given, and the strength of the evidence against the second D.

        (3) District court clearly erred in applying to second D, pursuant to USSG § 3B1.1(b), a three-level enhancement for managerial or supervisory role in the drug conspiracy.

District court reversibly erred in denying D’s motion to correct his presentence report under Fed. R. Crim. P. 36. United States v. Mackay, 757 F.3d 195 (5th Cir. 2014).

        Fed. R. Crim. P. 36 permits a district court “at any time [to] correct a clerical error in a judgment, order, or other part of the record.” Because the presentence report (PSR) affects the right and obligations of the defendant, it is of like kind or character as a “judgment” or “order,” and thus is embraced by the term “other part of the record” as used in Rule 36. Moreover, the error in the PSR—referring to D’s drug convictions as involving cocaine, not marijuana—was not harmless; the Fifth Circuit reversed the district court’s order denying correction of the PSR and remanded with instructions to the district court to correct the clerical error in the PSR.

Court of Criminal Appeals

The search warrant affidavit for the residence, minus the drug-dog’s alert, established probable cause because the tip came from a concerned, good citizen whose detailed information was verified; also, one of­ficer smelled marijuana at the front door of the residence, and the other officer smelled marijuana on D and in D’s car after he saw D leave the residence with the suspected marijuana-growing operation. State v. Cuong Phu Le, 463 S.W.3d 872 (Tex.Crim.App. 2015, reh’g denied).

        “This case involves a search warrant based in part upon an alert from a drug-detecting dog. After the execution of the search warrant, but before a hearing on the motion to sup­press, the United States Supreme Court held in Florida v. Jardines[, 133 S.Ct. 1409 (2013)] that law-enforcement officers’ use of a drug-sniffing dog on the front porch of a home without a search warrant violated the Fourth Amendment. Consequently, this Court must determine whether the search-warrant affidavit—minus the drug-dog’s alert—clearly established probable cause. The trial judge held that it did not, and the court of appeals agreed. . . . We reverse because we find that when looking at the warrant affidavit as a whole, the independently and lawfully acquired information stated in the affidavit clearly established probable cause.”

D’s sentences should run concurrently because the remand for a new punishment hearing in D’s aggravated-robbery case caused the aggravated-robbery sentence to be removed from the stacking order, and the trial court did not choose to stack the new sentence onto the sentence in D’s heroin case. Ex parte Vela, 460 S.W.3d 610 (Tex.Crim.App. 2015).

        D was convicted of aggravated robbery and sentenced to life in prison. He was also convicted of possession of heroin and sentenced to 60 years. The trial court ordered that the heroin sentence be “stacked” onto (run consecutively to) the aggravated-robbery sentence. D appealed his aggravated-robbery conviction, and the case was reversed and remanded for new punishment. At the new punishment hearing, he again received a life sentence, but the trial court did not issue a new stacking order with respect to the heroin sentence. Applicant here complained that the Texas Department of Criminal Justice was treating his heroin sentence as if it were stacked onto the aggravated-robbery sentence. He claimed that once the aggravated-robbery case was reversed, it vanished for stacking purposes. He further contended that because the court did not issue a new stacking order with respect to the heroin sentence when he was re-sentenced for the aggravated robbery, the heroin and aggravated-robbery sentences should run concurrently.

        CCA granted habeas relief: “We filed and set this habeas application to determine what effect granting a new punishment hearing has on a stacking order. We conclude that the granting of a new punishment hearing removes the sentence from the stacking order. Because the trial judge in the present case did not issue a new order stacking the new sentence in the re-sentenced case onto the sentence for an existing conviction, applicant’s sentences are running concurrently.”

D’s convictions for indecency with a child by contact did not violate double jeopardy; a single count alleging sexual contact was not subsumed by a count alleging penetration because evidence of multiple incidents, of both contact and penetration, could have formed the basis for each count. Maldonado v. State, 461 S.W.3d 144 (Tex.Crim.App. 2015).

        D was convicted of 12 counts of aggravated sexual assault of a child and indecency with a child and sentenced to life in prison. COA vacated two of the convictions for indecency with a child on double jeopardy grounds. The State filed a petition for review, which CCA granted to consider whether the subsumption theory of Patterson v. State, 152 S.W.3d 88 (Tex.Crim.App. 2004), was still valid and if so, whether a single count alleging sexual contact is subsumed by a count alleging penetration when there is evidence of multiple incidents of penetration which could have formed the basis for each count. CCA reversed COA.

        “[T]he jury was presented with evidence of multiple instances of conduct involving different acts at different times over a span of many years. Thus . . . the jury very well could have found completely separate acts of indecency with a child by touching and aggravated sexual assault by penetration. We considered whether separate acts of indecency with a child were jeopardy barred in Loving v. State, 401 S.W.3d 642 (Tex.Crim.App. 2013). In Loving . . . the defendant’s indecency-by-exposure conviction was not jeopardy barred because the defendant’s conduct violated the indecency-with-a-child statute two separate times, both by contact and by exposure. . . . [COA] should have followed Loving rather than Patterson. Patterson is properly applied when, under the facts of the case, the jury could not have found separate offenses or separate acts. In Patterson, the exposure was not separate from the penetration and the legislature did not authorize separate punishments in that situation. . . . An offense may be factually subsumed when there is a single act that cannot physically occur in the absence of another act. . . . While it is true that penetration cannot physically occur in the absence of contact, the contact offenses here are not factually subsumed because there was evidence that separate and distinct indecency-by-contact offenses occurred at other times in addition to the contact associated with the penetration offenses. . . . Patterson is still valid but subsumption does not apply to the facts of this case.”

Due process did not prohibit the trial court from revoking D’s probation after a second revocation hearing, based on grounds that the trial court was aware of but did not consider at the first revocation hearing. Tapia v. State, 462 S.W.3d 29 (Tex.Crim.App. 2015).

        On two separate occasions appellant was brought before the trial court on motions to revoke deferred adjudication com­munity supervision and adjudicate guilt. After appellant’s first revocation hearing, the court continued appellant on deferred adjudication community supervision but sanctioned him to 21 days in jail. At the second revocation hearing, based on a new motion filed by the State, the court revoked ap­pellant’s community supervision, adjudicated him guilty of aggravated assault, and sentenced him to five years in the Texas Department of Criminal Justice—Institutional Division. COA reversed. CCA reversed COA.

        The trial court did not violate D’s due process rights when it revoked his community supervision under Tex. Code Crim. Proc. art. 42.12; COA erred by holding that it did, where the revocation occurred after a second revocation proceeding and was based on newly alleged drug and alcohol violations. Even though the trial court, the State, and D were aware of the purported drug and alcohol violations at the first hearing, such violations were not alleged in the first written motion to revoke and no evidence was presented at the first hearing in support of such violations; it was clear that the trial court had intentionally not taken the drug and alcohol violations into consideration when it made the decision to continue D’s community supervision after that first hearing.

Questions asked in a custodial interview about D’s name and phone number did not fall within the booking exception to Miranda; D’s name and phone number had incriminating value in themselves and did not simply lead to other incriminating evidence, as the detectives informed D that they had several names for him. State v. Cruz, 461 S.W.3d 531 (Tex.Crim.App. 2015).

        COA erred by reversing the trial court’s order suppressing the statements D made during a police interview relating to a murder charge. “We arrive at this conclusion because, though the questions may have been the type that would be asked during a booking procedure, the questions were not asked during a booking procedure, and the circumstances did not otherwise reveal that the questions were reasonably related to an administrative purpose. We also conclude that [COA] erred in holding that questions about the defendant’s name and phone number did not constitute interrogation. Consequently, we reverse [COA].”

D’s request for a pretrial determination of intellectual disability did not call for the execution of a ministerial act, and so COA erred in granting mandamus relief to the State to stop these pretrial hearings. In re Allen, 462 S.W.3d 47 (Tex.Crim.App. 2015).

        Facing two capital-murder charges, D sought a pretrial hear­ing requesting the trial judge determine whether he was in­tel­lectually disabled and thus exempt from the death penalty if convicted. Over the State’s objection, the judge granted the motions for a pretrial hearing. COA granted the State mandamus relief, finding the judge acted outside his authority. CCA conditionally granted D’s petitions for writ of mandamus to COA; the writs would issue in the event that COA failed to comply with this opinion.

        The uncertainty surrounding intellectual-disability determinations prevents labeling the judge’s actions a violation of a ministerial duty. It was error to grant the State mandamus relief finding a trial judge had no power to grant D’s motion for a pretrial determination of intellectual disability in capital murder cases because existing law did not support the conclusion, nor was it proper to interpret statutes, clarify precedent, or create law in a mandamus proceeding. Tex. Code Crim. Proc. art. 37.071, § 2, did not apply because, if a trial judge found a defendant exempt from the death penalty pretrial, the State no longer sought it. D’s motion was not nonjusticiable for lack of ripeness because the State’s death penalty notice had an immediate effect. Finally, when the trial judge was succeeded by another judge, Tex. R. App. P. 7.2(b) did not require abatement for the successor’s response because it did not apply to a Tex. R. App. P. 72 petition that was in front of CCA.

The jury should have been instructed pursuant to the jailhouse-witness corroboration statute because jailhouse witnesses testified to statements against D’s interest. Phillips v. State, 463 S.W.3d 59 (Tex.Crim.App. 2015).

        D was convicted of aggravated robbery. On appeal, D ar­gued that the trial court erred by failing to include a jury in­struction pursuant to the jailhouse-witness corroboration statute, Tex. Code Crim. Proc. art. 38.075(a). COA held that the trial court did not err, concluding that Article 38.075(a) did not apply because the jailhouse witnesses did not testify to any statements made by D that were “statements against [D’s] interest.” CCA vacated COA’s judgment and remanded for COA to conduct a harm analysis and address the remaining issues raised on appeal.

        The court should have included an Article 38.075(a) instruction in the jury charge because jailhouse witnesses testified to statements that were against D’s interest, in that he purportedly asked them to lie for him. A statement made by a defendant to a jailhouse witness can be against the defendant’s interest even if it does not expose the defendant to criminal liability. A statement that is against a defendant’s interest for purposes jailhouse-witness corroboration is one that is adverse to the defendant’s position. Here, the jailhouse witness’ testimony could be interpreted as evidence that D somehow tried to persuade them to say that they heard another man make comments indicating that he committed the robbery on his own—in other words, that D asked them to lie to help his position. That was precisely what the State argued to the jury: “Does an innocent person go around the jail asking people he’s just met to sign affidavits and lie for him?” CCA found that “D’s purported requests of the jailhouse witnesses to lie for him were offered against D at trial, can most certainly be interpreted as being adverse to his position, and thus were statements made by [D] to [the jailhouse witnesses] that were against [D’s] interest.”

Court of Appeals

Trial court reversibly erred by admitting into evidence the State expert’s retrograde extrapolation testimony under Tex. R. Evid. 702 during D’s DWI trial because the State failed to prove that the extrapolation was reliable. Veliz v. State, No. 14-14-00057-CR (Tex.App.—Houston [14th Dist] Aug 18, 2015).

        D appealed that the trial court erred in admitting retrograde extrapolation testimony because the State failed to demonstrate by clear and convincing evidence that the analysis of the testifying expert reliably assessed D’s blood alcohol concentration at the time he was stopped. COA agreed that the court erred in admitting the testimony; the expert did not explain her calculations or the science with clarity, she could identify few, if any, personal characteristics of D, and the only test was performed three-and-a-half hours after the stop. COA further held that the error affected D’s substantial rights; the error was not harmless given the State’s reliance on the expert’s testimony during closing arguments, the powerful persuasive effect of the testimony, the subjective nature of field sobriety tests, and the testimony undermining the non-extrapolation evidence of intoxication. COA reversed and remanded for a new trial.

D was egregiously harmed by jury-charge error that allowed the jury to arrive at a non-unanimous verdict where the two indicting paragraphs alleged two ways of committing the single offense of penetration. Williams v. State, No. 06-14-00219-CR (Tex.App.—Texarkana Sept 3, 2015).

        The trial court’s jury charge improperly allowed the jury to arrive at a non-unanimous verdict where the two indicting paragraphs alleged two ways of committing the single offense of penetration in Tex. Penal Code § 22.021(a)(1)(B)(i), the State presented evidence of two penetrations, as the complainant testified that D penetrated both her anus and her sexual organ, and the jury charge failed to require the jury to reach a unanimous verdict on the way D committed the crime. The error was egregious because there was compelling evidence presented that D sexually assaulted complainant in both manners alleged in the indictment, and the State erroneously explained that some of the jurors could find that D engaged in vaginal penetration while others could believe that he committed anal penetration. COA reversed and remanded for a new trial.

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